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1994 DIGILAW 887 (MAD)

Karthikeya Touring Thirai Arangam represented by its Proprietor, N. Mani v. The Commissioner and Secretary to Government, Home Department, Madras and others

1994-10-28

RAJU

body1994
Judgment : These two writ petitions may be dealt with together since they involve overlapping issues. 2. The petitioner in these writ petitions is the proprietor of a touring cinema theatre carrying on business under the name and style of “Sri Karthikeya Touring Thirai Arangam” at Surampatti Village, Erode Taluk, Periyar District. The salient facts which are relevant for the purpose of deciding the present writ petitions alone need be mentioned and there is no need for adverting to all the elaborate details furnished in the affidavits. The fact remains that in the year 1987 while the petitioner was running his touring cinema on a second term licence, the same was stopped on the ground that his touring that his touring cinema lies within the prohibited distance of 1609 metres of the nearest Srinivasa permanent theatre. At that stage, the petitioner approached the State Government seeking for exemption from the applicability of Rule 14(2) of the Tamil Nadu Cinemas (Regulation) Rules, invoking the powers under Sec.11 of the Tamil Nadu Cinemas (Regulation) Act. The Government in G.O.Ms.No.759, Home (Cinemas-I) Department, dated 4. 1988 after taking into account the population details and the need for the locality, have passed orders as hereunder: “Hence exemption under Rule 14(2) of the Tamil Nadu Cinema (Regulation) Rules, 1957 in favour of touring cinema arose. Considering the present inadequacy of cinema theatres in the area and the loss of income to the local body and to the Government, the needs of the public could be fully met only if exemption from Rule 14(2) of the Tamil Nadu Cinemas (Regulation) Rules, 1957 is granted to Sri Karthikeya Touring talkies, Surampatti Village, Erode Taluk, Periyar District. The Government have, therefore, decided to grant exemption to Sri Karthikeya Touring Cinema theatre, Surampatti village from Rule 14(2) of the Tamil Nadu Cinemas (Regulation) Rules, 1957. 7. The Government have, therefore, decided to grant exemption to Sri Karthikeya Touring Cinema theatre, Surampatti village from Rule 14(2) of the Tamil Nadu Cinemas (Regulation) Rules, 1957. 7. In exercise of the powers conferred by Sec. 11 of the Tamil Nadu Cinemas (Regulation) Rules, 1955 (Tamil Nadu Act IX of 1955) the Governor of Tamil Nadu hereby exempts Sri Karthikeya Touring Talkies, Surampatti village, Erode Taluk, Periyar District from the provisions of Rule 14(2) of the Tamil Nadu Cinemas (Regulation) Rules, 1957.” It appears that after the expiry of the second term of the touring cinema, the petitioner had closed down his touring cinema for a period of three months in terms of Rule 109 (2) of the Rules and thereafter applied for ‘C’ form licence before the second respondent by complying with necessary formalities in terms of Rule 109(2) read with the other relevant rules. Since there was delay in complying with the request of the petitioner, it appears that the petitioner moved this Court in W.P.No.7021 of 1993 and on the directions issued by this Court to pass orders on the request for the licence within three months and to issue ‘E’ form permit in the meantime, the petitioner approached the licensing authority, the second respondent herein. The second respondent by his order dated 17. 11.1993 has chosen to reject the application for licence applying the prohibition contained in Rule 14(2) of the Rules against the petitioner. At the time, the second respondent also has chosen to place reliance upon the orders of the first respondent in G.O.Ms.No.3289, Home (Cinemas) Department, dated 11. 1993 clarifying the position that the earlier exemption granted on 4. 1988 was not a permanent one but confined to the grant of second term licence alone with reference to which it was sought for at that time. Aggrieved, the petitioner has filed W.P.No.21211 of 1993 to quash the order of the second respondent refusing the grant of ‘C form licence in favour of the petitioner in respect of his touring talkies. The petitioner has also filed W.P.No.20893 of 1993 seeking to quash the order of the first respondent- Government in G.O.Ms.No.3289, Home (Cinemas), dated 11. 1993 whereunder the first respondent has chosen to clarify the position that the exemption granted to the petitioners touring cinema in G.O.Ms.No.759, Home (Cinemas), dated 4. The petitioner has also filed W.P.No.20893 of 1993 seeking to quash the order of the first respondent- Government in G.O.Ms.No.3289, Home (Cinemas), dated 11. 1993 whereunder the first respondent has chosen to clarify the position that the exemption granted to the petitioners touring cinema in G.O.Ms.No.759, Home (Cinemas), dated 4. 1988 from the provisions of Rule 14(2) of the Rules was for the particular camp alone and not as a permanent one. 3. Mr.V.P.Venkat, learned counsel for the petitioner while challenging the above orders contended as hereunder. (a) The order of the first respondent-State Government dated 11. 1993 in G.O.Ms.No.3289, Home (Cinemas) is violative of the principles of natural justice in that no opportunity whatsoever was given to the’ petitioner before passing such an order to the detriment of the interests of the petitioner. (b) The exemption granted in G.O.Ms.No.759, Home (Cinemas), dated 4. 1988 was not subject to any condition or confined to any period or point of time limit and that having been passed without any stipulations or conditions whatsoever, it should be considered that the said exemption order was a permanent exemption with reference to the violation of Rule 14(2) of the touring cinema of the petitioner. (c) On an earlier occasion when the scope of the exemption order fell for consideration before the Appellate Authority namely, Commissioner of Land Administration, the said authority in its proceedings in Cinema Appeal No.48 of 1992 dated 6. 1992 construed the exemption to be not confined to any particular point of time or period and that, therefore, the view now taken by respondents 1 and 2 in these writ petitions is contrary to law and is liable to be set aside. 4. Mr.R.Gandhi, learned Senior Counsel appearing for the impleaded third respondent in W.P.No.21211 of 1993 while adopting the reasons assigned by the second respondent licensing Authority as also by the Government under the impugned order in the above two writ petitions contended that the exemption granted must be considered to enure only during the life time of the second term licence when it was sought for and cannot be considered to be for an unlimited point of time or for all times to come irrespective of the subsequent changes or subsequent developments and that therefore, no exception could be taken to the impugned orders of the licensing authority as also the first respondent. 5. 5. The learned Government Advocate, while defending the orders of respondents 1 and 2 also highlighted the facts that when the application was made to the Government by the petitioner which resulted in the passing of the earlier exemption order inG.O.Ms,No.59,Home(Cinemas),dated4. 1988, the petitioner specifically adverted to the remaining period of the second term for his touring cinema for which the licence was sought for and claimed exemption only with reference to the remaining period only and, therefore, also in addition to the reasons assigned under the impugned orders, the exemption granted earlier should be confined to the remaining period of the second term licence only and it cannot be considered as a permanent one for all times to come. 6. I have carefully considered the submissions of the learned counsel appearing on either side. The countenance of various grounds canvassed on behalf of the petitioner in these writ petitions would very much depend upon the scope and purport of the order of the exemption granted in G.O.Ms.No.759, Home (Cinemas), dated 4. 1988 and therefore, I consider it appropriate to deal with the same in the first instance. If on the face of the order and the relevant provisions of law under which the same came to be passed, it has to be construed as only an exemption enuring for the period of the second term licence of the touring cinema in question, the other grievance about the so called variation or modification or clarification behind the back of the petitioner as well as the plea placed on the alleged violation of the principles of natural justice will have no basis or substance. Therefore, it becomes necessary to consider the nature, scope and purport of the order dated 4. 1988. 7. The learned Government Advocate has made available the entire file relating to G.O.Ms.No.759, Home (Cinemas), dated 4. 1988. It is seen from the said file that in the copy of the application made by the petitioner that the exemption was sought for with reference to the balance of four years of the running of the touring cinema for the second term. Even that apart, a careful analysis of the detailed order would go to show that the exemption was granted with reference to the peculiar facts and circumstances prevailing as on that point of time of consideration only. Even that apart, a careful analysis of the detailed order would go to show that the exemption was granted with reference to the peculiar facts and circumstances prevailing as on that point of time of consideration only. This is made clear from the first paragraph as well as the penultimate paragraph of the Government order dated 4. 1988. Even when the relevant provisions of the Act and the Rules are considered, it could be seen that what has been asked for by the petitioner on the earlier occasion was for an exemption in respect of his touring cinema from the rigour of operation of Rule 14(2) of the Tamil Nadu Cinemas (Regulation), Rules, 1957 hereinafter referred to as ‘the Rules’ which provide that the restrictions in respect of distance between cinemas particularly between a touring cinema in any place and the nearest permanent cinema located in the same local area or in the adjacent village, panchayat or town shall not be within 1,609 km. The exemption has been sought for under Sec.11 of the Act under which the Government has been enabled to, by an order in writing exempt, subject to such conditions and restrictions as they may impose any cinematograph exhibitions or class of cinematograph exhibitions or any place where a cinematograph exhibition is given from any of the provisions of the Act or the Rules made thereunder. The exemption granted in the case on hand under G.O.Ms.No.759, Home (Cinemas), dated 4. 1988 as could be seen from paragraph 7 of the said order is to exempt Sri Karthikeya Touring Talkies, Surampatti village from the provisions of Rule 14(2) of the Rules. The exemption therefore, for purpose of Sec.11 appears to have been granted only vis-a-vis the touring talkies in question keeping in mind and consideration the cinematograph exhibition and not with reference to any place as such. In case where the exemption is in favour of a touring cinema for purpose of cinematograph exhibition, the life of the order of exemption would and can enure only upto the expiry of the particular term of the touring cinema with reference to which such exemption was granted. The duration of life of the exemption order of the period of validity of exemption granted is necessarily in built and confined as well as restricted by the limited nature or duration of the term of touring cinema itself. The duration of life of the exemption order of the period of validity of exemption granted is necessarily in built and confined as well as restricted by the limited nature or duration of the term of touring cinema itself. A construction otherwise would be not only opposed to the policy of the Act but against public interest. If that is the scope and purport of the order of exemption dated 4 4 1988 as also its duration of life, there is hardly any legal basis for the grievance made on the alleged violation of principles of natural justice or the clarification made or the action of the first respondent in clarifying what was an obvious and an inescapable position. Since I have construed the scope or duration of life of the exemption order to be confined to the second term of the cinematograph exhibition of the petitioner touring cinema, the claim that the petitioner has acquired a right and that too a permanent right of exemption and such a right has come to be curtailed by the impugned order dated 11. 1993 is wholly misconceived without any basis and as such is liable to be rejected. The mere fact that the subsequent order by way of clarification came to be passed on 11. 1993, does not mean that any of the legally protected or vested rights of the petitioner has been interfered with or infringed by the first respondent. Consequently the plea of violation of principles of natural justice on the ground of denial of an opportunity before passing such an order does not merit countenance by this Court. 8. In the light of the conclusions of mine as above, the licensing authority was well within its rights is coming to the conclusion that the petitioner cannot be granted the ‘C licence merely on the basis of the exemption granted in his favour with reference to its touring on 4. 1988 when it was undergoing or performing the second term. Consequently, the order dated 111. 1993 is quite in accordance with law and cannot be said to be vitiated in any maimer. 9. For all the reasons stated above, the writ petitions fail and shall stand dismissed. No costs.